Opinion P Chidambaram writes: Ideology trumps Constitution
It appears that the aim of Uttarakhand was not to make a progressive and liberal law in tune with the changing values, morals and mores of society. It was, in the words of the Union Home Minister, to remove the “regressive personal laws”. Uttarakhand’s law is an assertion of majoritarianism
Uttarakhand Chief Minister Pushkar Singh Dhami launches Uniform Civil Code portal and a booklet, in Dehradun. (Source: PTI) 
Article 44 of the Constitution of India reads, The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India. The ideology-driven BJP has emphasized the words uniform civil code (UCC). That is understandable, but we cannot overlook the words citizens and throughout the territory of India.
The intent of the Constitution is that every citizen has the right to reside or settle in any place in India and the citizen should be governed by the same civil code in all places. The State’s obligation is to secure that right for all citizens. Parliament has, by and large, fulfilled that obligation — citizens of India are governed by the same law of contracts, the same law of limitation, the same procedure in any civil court, and the same law in matters concerning the citizen’s civil life (as opposed to criminal matters).
Presumptuous?
Parliament can certainly undertake the task of making laws on other civil aspects, like marriage, divorce and succession. However, it was presumptuous on the part of the state of Uttarakhand to take upon its shoulders the responsibility to make a law on marriage and divorce or succession and inheritance. In the first place, Uttarakhand cannot ensure that the law will apply to all citizens of India. Even in respect of persons born in Uttarakhand, the state law will apply only as long as the person resides or is domiciled in Uttarakhand. If a person does not like the law, the person can simply leave the state. Two domiciles of Uttarakhand may solemnize their marriage outside Uttarakhand. The state can do nothing to stop them from leaving or marrying.
Secondly, Uttarakhand cannot assume that its law will be available or applicable to a person born in Uttarakhand throughout the territory of India. If such a person marries or adopts a child or registers a will outside Uttarakhand, the question of applicable law will arise. The Uttarakhand law may be in conflict with the Parliamentary law in force and, in that situation, the law made by Parliament will prevail.
Uttarakhand may have made a UCC, but it was really the central government that was firing on the shoulders of Uttarakhand. It was a test shot. As expected, the law has sparked a debate because the body competent to examine the idea of UCC — the 21st Law Commission — had in its report of August 31, 2018 concluded that “this Commission has therefore dealt with laws that are discriminatory rather than providing a uniform civil code which is neither necessary nor desirable at this stage”.
It appears that the aim of Uttarakhand was not to make a progressive and liberal law in tune with the changing values, morals and mores of society. It was, in the words of the Union Home Minister, to remove the “regressive personal laws”. Uttarakhand’s law is an assertion of majoritarianism.
Reform?
The Act has three parts. The first part (sections 4 to 48) concerns ‘marriage and divorce ’, the second (sections 49 to 377) concerns ‘succession’, the third (sections 378 to 389) deals with ‘live-in relationship’, and the fourth is ‘miscellaneous’.
Some provisions of Part 1 are welcome. Bigamy and polygamy are forbidden. The age of marriage for girls is 18 and for boys is 21. It is compulsory to register a marriage.
Some provisions are plainly
unconstitutional. The Act applies to a ‘resident’ whether residing within or outside Uttarakhand. It is an over-broad definition that includes (i) a permanent employee of the central government employed (i.e. posted) in Uttarakhand for the time being and (ii) a beneficiary of any scheme of the ‘central government’. The Act may have breached the territorial jurisdiction of Uttarakhand. Some provisions are debatable, for example the provisions regarding divorce. Some provisions are status quoist. A person could be only a male or female and a ‘marriage’ could be solemnized only between a male and a female. Some provisions are regressive. The anachronistic relief of ‘restitution of conjugal rights’ has been retained.
Part 3 that deals with ‘live-in relationship’ is both regressive and unconstitutional. The law claims to apply to ‘residents’ of Uttarakhand staying ‘outside’ Uttarakhand, an obvious example of an oxymoron. The whole of Part 3 is a gross invasion of personal freedom and privacy, and will be struck down as unconstitutional. The Rules (Rule 15 to 19) are worse. Believe it or not, they prescribe duties and rights of live-in partners.
Conflict?
Part 2 deals with ‘succession’. Subject to further analysis, it seems that in the case of ‘intestate succession’, the features of the Hindu Succession Act, 1956 have been adopted with minor changes and incorporated into the law, excluding any rules of succession prevalent among other religious communities. The Act defines ‘estate’ and seems to recognize ‘coparcenary interest’ in the estate, implying that the Act has deferred to the customary practices of the Hindu community.
In the case of ‘testamentary succession’, the rules under the Indian Succession Act, 1925, as interpreted by the Courts, have been lifted and incorporated.
The extra-territorial reach of the law will, prima facie, be unconstitutional. By words and implication, the Uttarakhand law has deferred to the majority and brushed aside the features of personal laws prevalent among non-Hindu communities. Has the law sowed the seeds of reform or conflict? Only time will tell.
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